Complainant

Respondent

Parties

Gary  Maloney

Griffin Autos Ltd Bill Griffin Motors

Representatives

Eoin O’ Connor BL Bowman McCabe Solicitors

Hugh O’ Donnell BL Dillon Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055052-001

13/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055052-002

13/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055052-003

13/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055052-004

13/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055052-005

13/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055052-006

13/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055052-007

13/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055052-008

13/02/2023

The Complainant was employed as a sales representative with the Respondent from 4th October 2021 until 8th October 2022.

CA-00055052-001,002,004-008

These complaints are withdrawn.

CA-00055052-003

The Complainant was employed as a car salesman. His employment was summarily terminated on 8th October 2022. He did not receive a written contract of employment or employee handbook setting out a disciplinary procedure.

The Complainant requested annual leave approximately three months in advance and spoke to the accountant who dealt with the requests. He was told to speak to Mr. Dave Griffin Managing Director. When he spoke with Mr. Griffin, he told him the Griffin family had a wedding on the same week and he wanted a full crew working that week. The Complainant advised his partner had booked and paid for the trip which had no cancellation policy. Mr. Griffin said “It should be fine, it shouldn’t be busy that week, talk to one of us before them dates”.

Around ten days before the holiday, the Complainant asked to speak with one of the Directors but he was unavailable. The Complainant went on annual leave and returned on 8th October 2022. When he arrived into work he noticed his desk was taken by a colleague. His line manager Mr. Michael Fleming asked where he was the last week, and the Complainant said he was on annual leave. Mr. Fleming said no one knew where the Complainant had been. However, the Complainant had bumped into one of the Directors on holiday.

Mr. Fleming said he was instructed to send the Complainant home and he should wait for a call from one of the Directors. The Complainant waited but did not receive any call from the Directors. He received an email detailing his holiday pay. When the Complainant checked with Revenue it transpired 8th October 2022 was recorded as the date his employment ceased.

The Complainant relies on the provisions of S6 of the Unfair Dismissals Act 1977 as amended. The Complainant was not subject to an investigation or meeting, nor advised his position was at risk and Kearns v Owen O’ Driscoll t/a Subway UD507/2015 which states:

“The Tribunal finds that the claimant was not adequately warned of the possibility that his employment was in danger of being terminated. Communication was largely by text message or telephone. Where a person’s employment is at risk there is an onus on the employer to make this absolutely clear that this is the case and ideally by letter. The Tribunal are not satisfied that adequate steps were taken to alert the Claimant as to what the true situation was.”

The Complainant relies on the provisions of SI 146/2000 Code of Practice on Grievance and Disciplinary Procedures which sets out the basic procedures an employer should follow prior to dismissing an employee. The Complainant relies on DHL Express (Ireland) Ltd v M Coughlan UDD173, Morbury Limited T/A Top Security v Artur Jablonski UDD 1823 where the Complainant had requested annual leave months in advance, there was a dispute as to whether this was granted or not. On return from annual leave the employee was subject to an investigation and ultimately dismissed. The Labour Court found the dismissal was unfair. The Complainant’s representatives submit the failure to hold a disciplinary meeting at all must be fatal to any disciplinary process.

The Complainant sought to mitigate his loss and applied for positions as a car salesman. He was out of work from 8th October 2022 until 10th March 2023. His financial loss inclusive of commission is €19,026.00.

The Respondent disputes the dismissal and says the complaint is frivolous and vexatious. The Respondent says the Complainant resigned from his position.

The Complainant commenced employment on 4th October 2021 as a senior car sales executive. He was provided with a contract of employment on 5th October 2021 which includes key HR policies including a disciplinary procedure. His contract of employment provides the Complainant is entitled to 24 days holidays as a full-time employee on a six day week. It states “The company holiday calendar roster system runs from January 1st to December 31st, each year opens on January 1st on a first come first served basis.

Holidays must be taken by arrangement with your manager with you providing at least 4 weeks notice of intention to take the same for anything above 1 working day and will be approved on a first come first served basis and depending on business needs….

Accounts office operate an excel calendar which can be checked at anytime. Any requests must be in writing and will be approved/declined within a working day by Dave Griffin”.

In or about the beginning of July 2022, the Complainant approached the Respondent’s accountant and requested to take annual leave for the week beginning 10th October 2022. The accountant said the calendar was booked out and he should have checked before booking flights. The accountant referred the Complainant to Mr. David Griffin. The Complainant made a request to Mr. Griffin and mentioned his partner had booked the trip for week of 10th October 2022. Mr. Griffin said he could not approve the request as he and his brother were away that week for a family wedding. He told him to move the flights. The Complainant never submitted a written request for annual leave for the period.

The Complainant worked on 8th October 2022. He had sales and leads. He was absent on 10th October 2022. He left his company car in the premises next door but did not leave the key for the car. The Complainant took his phone and laptop. The Respondent attempted to ring the Complainant, texted, emailed and Whatsapped him to find out why he was not in work. Mr. Griffin called to the Complainant’s house and left a note for him to call urgently on 11th October 2022. The Respondent arranged for the car to be towed from the neighbouring premises. On 13th October 2022, Mr. Griffin wrote to the Complainant asking him to contact as soon as possible, stating it was not an investigation or discipline.

On 13th October 2022, the Complainant sent a colleague a picture with Mr. Griffin’s brother Robert from Portugal. The Complainant met Mr. Robert Griffin. He told Mr. Griffin he had to come on holidays and questioned if Mr. David Griffin was on holidays and did a hiding face joke. Mr. David Griffin witnessed the Complainant in a bar in Portugal later that day.

On 17th October 2022, the Complainant texted Mr. Fleming at 9am and asked if you want me to come into work today. This was the first time the Complainant communicated with the Respondent. The Complainant arrived into work a few minutes later and spoke with Mr. Fleming. The Complainant said you know I had to take that holiday. Mr. Fleming mentioned customer complaints, lost sales and leaving the car parked in the neighbouring premises. Mr. Fleming said Mr. Griffin wanted to speak to the Complainant when he is back on 18th October 2022. Mr. Fleming said the Complainant is not the flavour of the month, to put his head down, try and apologise to your colleagues, figure out your leads and remaining customers. Dave is here tomorrow and he will sort this.

The Complainant shrugged and handed Mr. Fleming his laptop. He said “Ah we’ll leave it I’m done anyway don’t leave me short I owed a good bit” and left. Mr. Fleming tried to ring the Complainant later that day but there was no response. The Respondent tried to contact the Complainant that week by phone and letter of 18th October 2022, and Whatsapp from Mr. Griffin. There was no response from the Complainant.

The Respondent denies the Complainant was dismissed. Mr. Fleming was a sales colleague not a manager. The Respondent did not want to dismiss the Complainant who had a good working relationship with the Complainant and was friendly with him. The Complainant did not return his company phone or key to the car. The phone was cut off in late November/early December. The Respondent replaced the key at a cost of €1,000. A final payslip issued to the Complainant on 25th October 2022 with his last day as 8th October 2022.

The Respondent relies on Millet v Shinkwin (EDD044) when the Employment Appeals Tribunal held that “resignation is a unilateral act, which if expressed in unambiguous and unconditional terms, brings a contract of employment to an end” and Willoughby v CF Capital PLC [2011] IRLR 198.  Redmond on Dismissal Law states at para 22.22 “When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer generally it is safe to conclude that the employee has resigned. The contract is terminated in accordance with its terms and as there is no repudiation, acceptance is not required by the employer.”

 Without prejudice to the foregoing, the Respondent places the Complainant on strict proof of efforts to mitigate losses in accordance with S7 (2)( c) of the Unfair Dismissals Acts 1977 as amended. The Respondent relies on the Labour Court decision in Smith v Leddy UDD 74/2019 that is expected to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment and the decision in Sheehan v Continental Administration Co Ltd UD858/1999. The Complainant has failed to mitigate his losses. An advertisement for a new sales executive for another motor company where the Complainant was previously employed was advertised on 22nd October 2022. The Respondent is aware the Complainant returned to work with his previous employer in early 2023.

I have heard and considered the submissions and evidence of the parties.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The Complainant was employed with the Respondent from 4th October 2021 as a sales executive. The Complainant asked the Managing Director if he could take one week’s holidays from 10th to 14th October 2022 as his partner had paid for a holiday for that week, which was non-refundable. There is conflict in the evidence of the parties about what occurred. The Managing Director said there was a family holiday that week and he refused the Complainant’s request. However, the Complainant says the Managing Director said it should probably be alright and asked him to speak to one of the Directors about the holiday ten days beforehand.

The Complainant says he did not get to speak to a Director prior to going on holidays. When he was in Portugal, he met one of the Directors on 13th October 2022. He asked if the Managing Director was there and hid his face. He sent a photo of himself and the Director to his colleague.

The Respondent said they were trying to contact the Complainant on 10th October 2022 as they did not know where he was. The Complainant returned to work on 17th October 2022. The Complainant says he was told to go home and wait by Mr. Fleming, that the Managing Director would be in contact when he returned on 18th October 2022 but he was never contacted. However, Mr. Fleming says the Complainant said he was leaving, I am done and returned his laptop.

The Managing Director gave evidence letters of 13th October and 18th October 2022 were hand delivered to the Complainant referring to him on an “unauthorised holiday, absent without leave and is causing serious issue with customers and staff” and letter seeking his resignation in writing. The Complainant denies receiving any letters or calls whatsoever from the Respondent and returned to work on 17th October 2022. He subsequently discovered his employment terminated on 8th October 2022.

The Respondent has a Grievance and Disciplinary Policy applying to employees whose performance, behaviour, conduct or attendance falls below the company requirements to achieve the necessary improvements and if necessary disciplinary action will be used. The policy does not set specifics of how the right to a fair and impartial examination of the allegations may be achieved, and this is a matter for the Respondent to determine in the particular facts of the case to ensure a fair and impartial examination of the issues in accordance with the Supreme Court in Mooney v An Post [1998] 9 ELR 238. The extent of compliance by the Respondent with Statutory Instrument 146/2000 Code of Practice on Grievance and Disciplinary Procedures is also relevant. At paragraph 6 this requires organisations to comply with the general principles of natural justice and fair procedures which include:

“That details of any allegation or complaints are put to the employee concerned

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints…..

These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”.

I accept the Complainant’s evidence that he was told to leave the premises and that the employer would be in contact. No evidence has been provided of any investigation into the incident or disciplinary procedure applied by the Respondent following the Complainant’s return from annual leave. The Respondent has failed to discharge the statutory burden. I find the dismissal of the Complainant is unfair on both procedural and substantive grounds.

 The Complainant obtained employment on 10th March 2023. His financial loss inclusive of commission is €19,026.00. Taking into account the Complainant’s mitigation, and contribution to his dismissal, in all the circumstances it is just and equitable to direct payment of financial loss of €12,500 by the Respondent to the Complainant.

The dismissal is unfair. The Respondent is directed to pay financial loss of €12,500 to the Complainant.